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High Court Of Madhya Pradesh
G. P. Singh C. J. and Faizanuddin, J.
MOHAMMAD ADNAN KHAN
Versus
MUNICIPAL CORPORATION BHOPAL
Decided On : Oct 13,1981
Section 342 of the 1956 Act continued the bye - laws made under the 1916 Act if not inconsistent with the provisions of the 1956 Act. It is a moot question whether the scheme of the new Act that service conditions could not be regulated by bye laws and that they could be regulated by rules made by the State Government brought about such an inconsistent that the bye laws relating to conditions of service made in 1947 under the 1916 Act could not be continued under section 342 as bye laws It is not necessary to decide this question, for, in our opinion. section 342 of the 1956 Act also continued appointments made under the 1916 Act The 1956 Act did not expressly provide for the terms and conditions on which the appointments were to continue but the necessary implication is that they were continued on existing terms and conditions Thus, the 947 bye-laws continued as conditions of service of the employees who were recruited before the repeal of the 1916 Act by the 1956 Act even after the repeal. [Para 4
(2) Municipal Corporation Act, 1956 (MP) - Ss. 442 (5) and 427 - obstante clause in sub section (5) of S 442 - does not take away right to make bye-laws provided under S. 427 -effect of substantive part of sub section (5) is in nature of fiction by which conditions of service applicable on the presiding date have been made applicable on the date of application of the Act.
The learned counsel for the petitioners placed reliance on non obstante clause in sub-section (5) which is in the affect "Notwithstanding anything contained in this Act or any rule or bye law made there under;" and argued that no bye-law or rule can be made under the Act to take away the old conditions of service continued by sub, section (5).
Held: This argument proceeds upon a misconstruction of the substantive part of the sub-section, As earlier pointed our by us, the effect on the substantive part of sub section (5) is that the conditions of service as on the date immediately preceding the date of the application of the Act become the conditions of service on the date of the application of the Act. This is the fiction created by the substantive part of sub-section (5). The operation of the notwithstanding cause is restricted to this fiction. Putting it differently, nothing in the provisions of the Act or any rule or bye law made there under can have effect to mean that the conditions of service as on the date immediately before the date of the application of the Act will not be the conditions of service on the date when the Act is applied. No rule or bye-law can be made to change this legal position but there is nothing in the sub-section or in the notwithstanding clause to take away the power of the Corporation to subsequently change the conditions of service by making bye-laws in exercise of its power under the Act. Sub-section (5) does not contain a guarantee that service conditions of the old employees will not be changed at all. This conclusion is further supported by the fact that sub-section (5) is a part of a section which is described to be containing "Transitory provisions" as mentioned in its marginal note. Indeed it would be a very novel thing to find a guarantee of the nature contended for by the learned counsel for the petitioners spelled out of a transitory provision. Sub-section (5) does not take away the power of the Corporation to make bye-laws under section 427 to regulate conditions of service of employees of the defunct Municipal Council who became employees of the Corporation under section 442. [Para 7
(3) Municipal Corporation Act, 1956 (MP) - Ss. 427, 432, 429 and 430 - power to make bye-laws under 427 - implies power to repeal previous bye-laws - S. 432 is an independent provision to repeal or amend by law made under S. 427 following procedure prescribed under Ss. 429 and 430. [Para 8
(4) Words and phrases-word "existing"-connotation of-it can notes "having existence now". [Para 7
(5) Words and phrases-word "existing"-is very often defined to mean "existing at the commencement of the Act." Stroud and Judicial Dictionary 4th Edn. 974 relied on. [Para 7
( 1. ) THIS order shall also dispose of Miscellaneous Petitions Nos. 752 of 1979 and 753 of 1979. The petitioners in all these petitions were Class III employees of the Municipal Corporation, Bhopal. They were all superannuated on attaining the age of 58 years on different dates in 1979. By these petitions under Article 226 of the Constitution, the petitioners challenge the orders of their retirement.
( 2. ) THE petitioners started their career as employees on different dates between 1946 and 1954. The petitioners contend that the age of superannuation for them continued to be sixty years in accordance with the bye-laws notified on 1. 1th November 1947 which were made under the Bhopal State municipalities Act, 1916.
( 3. ) TO begin with, Bhopal City was constituted as a Municipality under the Bhopal State Municipalities Act, 1916. Section 269 (I) (j) of this Act empowered the Municipality to make bye-laws relating to conditions of service of employees of the Municipality. The bye-laws made in exercise of this power were published by the Government by Notification No. 30 dated 11th november 1947 in the Bhopal Gazette. The age of superannuation applicable to Class III employees under these bye-laws was sixty years. By another notification dated 4th February 1955, the Government of Bhopal applied fundamental rules and other rules as applicable to the Government servants to the municipal employees. There was, however, a proviso in this notification which made it clear that the application of the fundamental rules and other rules was subject to the condition that they were not inconsistent with the provisions of the Bhopal Municipalities Act and the Rules, Regulations and bye-laws made thereunder. The application of fundamental rules and other rules had, therefore, not the effect of changing the age of superannuation which was sixty according to the bye-laws notified by Notification No. 30 dated 11th november 1947. It may here be mentioned that in Bhopal Municipality v. N. Hasan, AIR 1972 SC 892. it is observed (page 893) that by application of the fundamental rules etc. the retirement age was brought down to 58. It means that the proviso contained in the notification dated 4th February 1955 was not brought to the notice of the Supreme Court. In fact, in that case, it was not material whether the age of superannuation was 58 or 60 as the employee concerned was retired at the age of 55. The observation made by the Supreme court that the age of superannuation was reduced by the notification dated 4th February 1955 cannot be taken to have decided that question. As already pointed out, because of the proviso contained in the said notification the 1947 bye-laws fixing the age of superannuation at sixty continued to have effect.
( 4. ) THE Municipalities Act of 1916 was repealed and replaced some time in 1956 by the Bhopal State Municipalities Act (Act No. 3 of 1956 ). Section 308 of this Act conferred power on the Municipality to make bye-laws but this section contained no power to make bye-laws on the subject of conditions of service of employees. This was in contrast to section 269 (1) (j)of the 1916 Act. Section 309 of the 1956 Act, however, empowered the State government to make rules in respect of conditions of service of employees. Section 342 of the 1956 Act continued the bye-laws made under the 1916 Act if not inconsistent with the provisions of the 1956 Act. It is a moot question whether the scheme of the new Act that service conditions could not be regulated by bye-laws and that they could be regulated by rules made by the state Government brought about such an inconsistency that the bye-laws relating to conditions of service made in 1947 under the 1916 Act could not be continued under section 342 as bye-laws. It is not necessary to decide this question, for, in our opinion, section 342 of the 1956 Act also continued. appointments made -under the 1916 Act. The 1956 Act did not expressly provide for the terms and conditi
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